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2021 DIGILAW 53 (ORI)

Budhu @ Budheswar Mohakud v. State Of Odisha

2021-02-09

S.K.MISHRA

body2021
JUDGMENT S.K. Mishra, J. - In this appeal, the sole appellant calls in question his conviction under Section 302 of the Indian Penal Code, hereinafter referred to as the 'Penal Code' for brevity, and the sentence of imprisonment for life as per the judgment dated 02.11.2000passed in G.R. Case No.12 of 1999 by the learned Special Judge, Mayurbhanj, Baripada. 2. The prosecution alleges that on 20.05.1999, at about 8 P.M., the appellant assaulted the deceased Turu @ Bhagirathi Karua by means of an axe causing bleeding injury on his person. Thereafter, he proceeded to Jamda outpost and orally informed the incident. On his oral information, the Station Diary No.320, dated 20.05.1999 was recorded at the outpost by Constable Madan Mohan Singh. Then, Constable Artabandhu Singh went to the village and found that the deceased was lying on the road in front of house of Harish Naik of Jamda Pradhan Sahi having sustained cut bleeding injuries. The deceased, in an injured state (was alive at that time), was shifted to the Hospital for treatment. But, the doctor of the Hospital declared him to have been brought dead. Constable Artabandhu Singh submitted a written report at Jamda outpost, which was stated to be an FIR by sending the same to Bahalda Police Station. The OIC of the said police station took up preliminary investigation. Subsequently, the police further investigated and after completion of investigation, submitted charge-sheet against the appellant. 3. The accused took the plea of simple denial and false implication. 4. In order to substantiate its case, the prosecution has examined 10 witnesses on its behalf and relied upon 16 Exhibits and one material object i.e. axe (M.O.-I). The defence did not examine any witness or rely upon any document. P.W.1 is the father of the deceased. P.Ws. 2, 3 and 4 are the co-villagers. P.W.6 is the doctor, who conducted post-mortem examination on the dead body of the deceased. P.Ws. 9 and 10 are police constables. P.Ws. 5, 7 and 8 are investigating officers in this case. 5. In course of advancing his argument, the learned counsel for the appellant submitted that at this stage the defence does not dispute the homicidal nature of the death of the deceased. However, he submitted that there are no admissible evidences on record to show that the appellant actually committed the offence of culpable homicide amounting to murder. 5. In course of advancing his argument, the learned counsel for the appellant submitted that at this stage the defence does not dispute the homicidal nature of the death of the deceased. However, he submitted that there are no admissible evidences on record to show that the appellant actually committed the offence of culpable homicide amounting to murder. He also assailed the findings of the learned Special Judge regarding the guilt of the appellant. The learned Addl. Government Advocate, on the other hand, supported the findings recorded by the learned Special Judge and argued that the appeal should be dismissed. 6. From the material on record, it is seen that the learned Special Judge has relied upon the following factual circumstances to have been established to prove that the appellant has committed murder of the deceased. They are enumerated below: (i) The homicidal death of the deceased. (ii) The statement of the appellant before the Constable at the outpost Post, which was recorded in the Station Diary. (iii) Recovery of the axe M.O.I on the disclosure statement made by the appellant. iv) The findings of the chemical examiner vide Ext. 15 that the axe and the wearing apparels of the deceased were stained with 'B' group of human blood. The homicidal nature of death of the deceased is not disputed by the appellant-counsel. So, there is no need to discuss that aspect of the case. The prosecution has established that the deceased met a homicidal death. The 2nd circumstance is the appearance of the appellant before the Constable of the outpost. The Constable recorded his statement. Such statement is not admissible in evidence as per Section 25 of the Indian Evidence Act. Section 25 of the aforesaid Act provides that any confession made before the police officer is not admissible in evidence. So, it was erroneous on the part of the learned Special Judge to take into consideration the statement allegedly made by the appellant before the police Constable at the outpost. Hence, this circumstance has to be taken out of consideration. The next point is, as the learned Special Judge has held, that the chemical report reveals that the weapon of offence M.O. I and the wearing apparels of the deceased were stained with human blood of 'B' group. Hence, this circumstance has to be taken out of consideration. The next point is, as the learned Special Judge has held, that the chemical report reveals that the weapon of offence M.O. I and the wearing apparels of the deceased were stained with human blood of 'B' group. However, while examining the appellant under Section 313 of the Cr.P.C., such question was put to the appellant and he has denied the same. 7. Thus, from the evidence, it is proved that the wearing apparels of the appellant and the axe seized on his discovery were stained with blood of human origin group 'B'. There is no allegation from the side of the appellant that the appellant has sustained the injury on his person. So, there is no need to determine the blood group of the appellant. Moreover, the doctor has opined that the injuries sustained by the deceased can be possible by the M.O.I. From a discussion of the aforesaid materials on record, it is apparent that the prosecution has established that the death of the deceased is homicidal in nature, the appellant while in custody gave a recovery statement of weapons of offence, which was found to be stained with blood group, which tallies with the blood group of the dead body of the deceased; and however blood found on the wearing apparels of the deceased and the wearing apparels of the appellant were found to be blood of human origin of group 'B'; and the spot of occurrence is objectively determined by the investigating agency. 8. Taking all these aspects into consideration, this Court is of the opinion that the prosecution has established its case by proving the incriminating circumstances unerringly pointing to the guilt of the appellant. Now, coming to the nature of offence, materials placed before us show that there was a previous enmity between the appellant and the deceased and the deceased had assaulted the appellant by means of a knife on his stomach for which a criminal case was initiated and the deceased was in custody for two years. On the night of occurrence at about 8 P.M, the deceased came to the house of the appellant and started a quarrel. As a result of which, the appellant dealt blows by means of a Budia on the deceased. So, in our considered opinion, it is not a case of culpable homicide amounting to murder. On the night of occurrence at about 8 P.M, the deceased came to the house of the appellant and started a quarrel. As a result of which, the appellant dealt blows by means of a Budia on the deceased. So, in our considered opinion, it is not a case of culpable homicide amounting to murder. Rather, this is a case of culpable homicide not amounting to murder punishable under Section 304 Part-I of the Penal Code. 9. In that view of the matter, the learned Special Judge has erred in convicting the appellant under Section 302 of the Penal Code. 10. In the result, the Criminal Appeal is allowed in-part. The convict-appellant is acquitted of the offence under Section 302 of the Penal Code. The sentence awarded against the appellant is set aside. He is convicted under Section 304 Part-I of the Penal Code. It is seen that the appellant was arrested on 23.05.1999 and he remained in custody till this Court granted him bail by suspending sentence under Section 389 of the Cr.P.C. i.e. 28.10.2011. In fact, the appellant is in custody for more than 10 years. So, we are of the opinion that a sentence of the period already undergone shall subserve the interest of justice. Accordingly, the appellant is sentenced to undergo imprisonment for the period, he has already undergone i.e. 22.05.1999 to 28.10.2011. He is on bail. He be set at liberty forthwith by cancelling the bail bonds executed by him, unless his detention is required in connection with any other case. 11. Send back the TCRs along with a copy of this judgment to the trial court forthwith. Urgent certified copy of this judgment be granted on proper application.